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ACCEPTANCE OF TERMS AND CONDITIONS
1.1 This Agreement sets out the terms and conditions of your access to the website .You acknowledge that you have read and agreed this Agreement prior to your Sign up Yeahmobi Performance Network, especially those in bold. If you do not accept all of the terms and conditions, please do not continue with the registration process.
1.2 We may amend this Agreement and other policies at any time by posting an updated version. The updated version of this Agreement and other policies we may post from time to time shall take effect immediately upon posting. Your continuous use of Yeahmobi Performance Network confirmation that you agree to be bound by this Agreement and other policies we publish as may be amended from time to time. If you cannot agree to change the content of the revised Agreement, you have the right to sign the revised terms separately after negotiation with us.
This terms and conditions and any Insertion Order, whether physically attached hereto or incorporated by reference) (collectively, the “Agreement”) constitutes the entire and exclusive agreement between MICROCLOUD MOBI TECH LIMITED (hereinafter, the “Microcloud”) and you or your company (hereinafter “Partner” or “You”). You and Microcloud may also be individually referred to herein as “Party” and collectively as “Parties.”
1. Formation of the Agreement
1.1The Agreement sets out the terms and conditions on which the Partner will provide Services to Microcloud. Microcloud appoints the Partner to carry out the Services on behalf of itself and Microcloud.
1.2 ANY OTHER TERMS, CONDITIONS, PERFORMANCE CRITERIA, GUARANTEES OR PRIOR REPRESENTATIONS, WARRANTIES WHATSOEVER (WHETHER WRITTEN OR ORAL), IRRESPECTIVE OF THE TIMING, SHALL BE OF NO EFFECT UNLESS EXPRESSLY INCORPORATED HEREIN. YOU HEREBY AGREE THAT YOU HAVE READ AND UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1.3Any changes to Insertion Order and promotion content shall be sent to the designated contact person of both parties at the email address at the Insertion Order for confirmation. The confirmed Insertion Order is binding upon both parties. Any modification to the Agreement shall have no effect unless expressly agreed in Insertion Order in writing and signed by an authorized representative of the Microcloud and Partner.
1.4 Confirmation and Change: All time, contents, format and specific promotion plan hereunder shall be approved by Microcloud in writing, and Partner may not promote without Microcloud’s writing confirmation. Microcloud can change the Services content at its sole discretion, and Partner shall make corresponding changes within 24 hours after receiving such request from Microcloud.
1.5 The Agreement shall: (a) prevail over and take the place of any other items or conditions stipulated, incorporated, referred to or contained in any document or communication from the Partner in the course of negotiations (except Insertion Order signed by both party); and (b) apply to the exclusion of any other terms or conditions on which any quotation has been given to Microcloud or any similar provision in the Partners terms and conditions shall be of no effect.
3. Provision of Service
3.1 The Partner shall perform, immediately from the Commencement Date, the Services using the highest level of professional care and skill in a good workmanlike manner in accordance with then current best industry practice and at all times in accordance with the terms of the Agreement (including to the applicable specifications and by the due dates as set out in the Insertion Order).
3.2 Participation in the Site Service and use of the Microcloud Site is subject to the terms and conditions of this Agreement, Microcloud’s approval of Partner’s participation may be withheld or terminated at any point, in Microcloud’s sole discretion, regardless of initial acceptance.
3.3 Criteria. Partner hereby acknowledges and agrees that to the extent it represents or acts on the behalf of third party Partners or websites (“Third Party Publishers”), Partner assumes all liability for such Third Party Publishers and will ensure that such Third Party Publishers comply with the terms of this Agreement and all applicable laws. Without limiting any other provision of this Agreement, Partner shall fully and completely indemnify, defend and hold harmless Microcloud for all damages arising from a Third Party Publisher’s breach of any obligations or warranties set forth in this agreement. Without limiting any other provision of this Agreement, Partner represents and warrants that it has the ability to terminate any Third Party Publisher’s Service immediately.
3.4 Oversight of Control: Microcloud has the right to supervise Partner’s Promotion Services and has the right to conduct spot checks any time, Partner shall actively cooperate for such checks. Microcloud may raise its objections regarding Promotion Services to Partner at any time and Partner shall reply within one business day after receiving such objection. Under the conditions that Partner fails to give reasonable reply or fails to reply in time, such objection shall be deemed as ratified and Partner shall take remedial measures and assume the liability of breaching the Agreement.
3.5 License. Subject to the terms and conditions of this Agreement, Microcloud grants Partner a revocable, non-transferable, non-exclusive limited license to use the Site Service, the Microcloud Site and any data, reports, information or analyses arising out of such use (the "Site Data") solely for the purposes set forth in this Agreement.
3.6 Acceptance of a Campaign. Without limiting any other provision of this Agreement, Partner represents and warrants that, upon acceptance and implementation of a Campaign, Partner shall abide by all terms and conditions of this Agreement. If Partner fails to adhere to all of the terms and conditions of this Agreement, in addition to all other remedies available to Microcloud, Microcloud reserve the right to terminate this Agreement immediately and withhold of any payment to Partner without penalty to Microcloud.
3.7 Providing material: If Partner needs Microcloud to provide the materials, creative or other information(referred to as “materials”), Partner shall notify Microcloud of the requirements at least seven(7) business days before the promotion and provide assistance if needed. Partner has the right to review the materials provided by Microcloud, if Partner believes such materials do not comply with the laws and regulations or any technical specifications specified in advance, Partner shall notify Microcloud within twenty-four (24) hours after receiving such materials, otherwise, it shall be deemed as in conformity with Partner’s promotion requirements.
3.9 Partner in principle is only allowed to use creatives and materials provided by Microcloud. You may not alter, modify, manipulate or create derivative works of the Links or any Microcloud creative, copy or other materials owned by, or licensed to Microcloud in any way. All self-made creatives, texts, pre-landers or other own made material which will be used to promote these Products and any other derivatives need to be submitted to Microcloud to get approved firstly.
3.10 Microcloud may revoke Partner license or rights anytime by giving Partner written notice.
4. Payment and Payment Liability
4.1 Microcloud shall make payment to Partner according to the Terms and Conditions of the Agreement. Invoice will be issued by Partner after the service is offered. Credit term shall be 45 days after the receipt of invoice.
4.2 Microcloud will pay the invoice by bank transfer as per the information given below in relation to Partner's bank account. Bank fee shall be individually paid by both Parties.
4.3 Partner agrees and acknowledges that Partner shall be fully responsible for all tax, whether state or local. When the amount is more than $500, by Bank transfer. The specific payment method confirmed by the Parties shall be clearly set out in the settlement bill provided by Microcloud and billing amount will be made based on the conversion data report of Microcloud. When the amount is not more than $3000.00, Partner will cover all transfer fee. Partner acknowledges that this policy may update at any time, and Partner agrees to comply with the updated policy.
4.4 Payment for Commissions is dependent upon Advertiser providing such funds to Microcloud, and therefore, you agree that Microcloud shall only be liable to you for Commissions to the extent that Microcloud has received such funds from the Advertiser. You hereby release Microcloud from any claim for Commissions if Microcloud has not received such funds from the Advertiser. Microcloud shall not be liable for any delayed payment which turned out shall be attribute to the Partner.
4.5 Partner shall notify Microcloud in writing within three (3) business days after the change of Partner’s account information happens.
5. Fraud, Suspension of Partner Account
5.1 Partner are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law or falsify information in connection with referrals through the Links or exceed your permitted access to the Microcloud Site. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using steal ware, cookie-stuffing and dishonesty or any other deceptive acts, click-fraud or misconduct that causes harm to Microcloud (collectively, “Fraud”).
5.2 Without limiting any other provision of this Agreement, Microcloud reserves the right, in Microcloud’s sole and absolute discretion to terminate this Agreement and/or Partner’s account, at any time without liability to Microcloud, should Microcloud determine, in its sole and absolute discretion that Partner engages in fraud.
5.3 IF MICROCLOUD DETERMINES THAT PARTNER HAS ENGAGED IN FRAUD, MICROCLOUD WILL FORFEIT ITS ENTIRE PAYMENT FOR ALL CAMPAIGNS AND PARTNERS ACCOUNT WILL BE TERMINATED IMMEDIATELY. IF PARTNER IS NOTIFIED THAT PARTNER IS ENGAGING IN FRAUD, AND PARTNER FAILS TO TAKE PROMPT ACTION TO STOP THE FRAUD, THEN, IN ADDITION TO ANY OTHER REMEDIES AVAILABLE TO MICROCLOUD, PARTNER SHALL BE RESPONSIBLE FOR ALL COSTS AND LEGAL FEES ARISING FROM SUCH FRAUD.
6. Qualified Action
6.2 The conversions quality is more important than quantity. Any fraud traffic, bad traffic and unapproved traffic (including but not limit to restricted traffic set forth in the Insertion Order) is not allowed, Microcloud has the right to refuse to pay if Partner sent fraud traffic, bad traffic and unapproved traffic. Microcloud reserves the right to charge back any previous payment that are later determined to have not met the requirements to be a Qualified Action or determined to be fraud traffic, bad traffic and unapproved traffic.
7. Representations and Warranties
7.1 Partner represents and warrants to comply with all obligations, requirements and restrictions under this Agreement and comply with laws, rules, policies and regulations as they relate to Partner business, Partner Media, Promotional Service Platform or Partner use of the links, creatives and materials.
7.2 Partner represents and warrants that: Partner has all necessary rights and authority to enter into this Agreement and to place advertisements on its Promotional Service Platform; (ii) Partner owns and/or has the right to use all materials contained on Promotional Service Platform;
7.3 Partner ensures that all materials provided by the Partner or its agents platform and posted on Promotional Service Platform or otherwise used in connection with the campaign (a) are not illegal, (b) do not infringe upon the intellectual property or personal rights of any third party or otherwise contains materials that Microcloud informs Partner that it considers objectionable.
7.4 Microcloud represents and warrants that the use of the campaign by Partner is all under the permission from Microcloud. Microcloud holds all necessary rights to permit the use of the campaign by Partner for the purpose of this Agreement; and that the use, reproduction, distribution, transmission or display of campaign, any data regarding users, and any material to which users can link, or any products or services made available to users, through the campaign will not (a) violate any criminal laws or any rights of any third parties or (b) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law.
8. Limitation of Liability
IN NO EVENT SHALL MICROCLOUD BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, LOST PROFITS, INDIRECT, INCIDENTAL, AND EXEMPLARY OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE WHETHER BASED IN AGREEMENT, TORT OR OTHERWISE, EVEN IF MICROCLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. MICROCLOUD'S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT RECEIVED BY MICROCLOUD FROM ADVERTISER FOR THE INSERTION ORDER GIVING RISE TO THE CLAIM.
9.1 Partner hereby agrees to indemnify, defend and hold Microcloud and Microcloud’s respective subsidiaries, publishers, partners and licensors, directors, officers, employees, owners and agents harmless against any and all penalties, damages, liabilities, losses , costs, and expenses (including attorney’s fees) and Microcloud shall have the right to request Partner to bear the liability equals to 30% of the Agreement amount incurred, under the condition that (i) any breach of this Agreement, including any representation, warranty, restriction or obligation made by Partner herein, (ii) any claim related to your Promotional Service Platform, including but not limited to, the content contained on such Platform. AndMicrocloud has the right to decide whether to terminate the Agreement or not, and request Partner to return all payment has been paid.
9.2 Partner shall be solely responsible for resolution and responsibility of any disputes and liabilities caused by Partner’s breach of the Agreement. If Microcloud is liable to any third party for the reasons of Partner, Partner shall compensate Microcloud for such losses.
9.3 Microcloud hereby agrees to indemnify, defend and hold Partner and its subsidiaries, publishers, partners, and their respective directors, officers, employees, owners and agents harmless against losses based on any breach of this Agreement, including any representation, warranty, restriction or obligation made by Microcloud herein.
9.4 In addition to any other rights and remedies available to both party under this Agreement Microcloud reserves the right to withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) Microcloud determines that you have violated this Agreement, (ii) Microcloud receives any complaints about your participation in the Service which Microcloud reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, Microcloud reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
10. Disclaimer of Warranty
THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO PARTNER "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, MICROCLOUD EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. MICROCLOUD DOES NOT WARRANT THAT THE PRODUCT OR LINKS WILL MEET PARTNER'S SPECIFIC REQUIREMENTS, MICROCLOUD EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF ADVERTISER OR THEIR PRODUCTS OR SERVICES.
11. Confidential Information
"Confidential Information" shall mean (i) campaign, prior to publication, (ii) the Insertion Order and any Microcloudstatistics which shall be deemed Microcloud Confidential Information; and/or (iii) any information designated in writing, or identified orally at time of disclosure, by the disclosing party as "confidential" or "proprietary." Neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restriction does not apply to information that: (i) has been independently developed by the receiving party without access to the other party's Confidential Information; (ii) has become publicly known through no breach of this Section by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. The confidentiality obligations of the parties hereunder shall not be invalidated by the expiration, rescission, termination or cancellation of this Agreement. If either party breaches confidentiality obligations shall bear all the losses caused to the other party.
12. Term and Termination
12.1 Term. This Agreement shall commence on the date of signature of Insertion Order by both Microcloud and you. Unless terminated by either Party upon three (3) business days prior written notice to other party, the Agreement shall automatically renew for successive one (1) year terms.
12.2 Microcloud can terminate any IO by giving twenty-four （24）hours prior notice in writing to Partner. Partner shall stop the service immediately after the receipt of the Microcloud notice, after that day the fee shall not be calculated.
12.3 Microcloud will be entitled to terminate this Agreement without notice immediately upon breach of any of the provision of the Agreement or of the IO committed by the Partner and such breach not being cured within fifteen (15) days from the receipt of written notice of such breach.
12.4 Upon termination of this Agreement for any reason, any and all licenses and rights granted to Partner in connection with this Agreement shall be immediately ceased and terminated. Upon termination of this Agreement, Partner will: (i) immediately terminate all use of and delete all Links and intellectual property which provided by Microcloud. (ii) immediately cease to use, and remove from the Partner’s websites, any and all campaigns and/or related materials made available to Partner in connection with Partner’s participation in the Services ; and (iii) immediately discontinue the use of the Site Service and any Site Data. In the event of termination of this Agreement, Sections 3, 4, 5, 6-12 shall survive.
13. Force Majeure
Either party shall not be held responsible for failure or delay to perform all or any part of this agreement due to Force Majeure. However, the party affected by the event of Force Majeure shall inform the other party of its occurrence in writing as soon as possible and thereafter send a certificate of the event issued by the relevant authorities to the other party within thirty (30) days after its occurrence. If the event of Force Majeure continues for more than forty-five (45) days, both parties shall negotiate the performance or the termination of this Agreement. If within three (3) months after the occurrence of the event of Force Majeure both parties cannot reach an agreement, either party has the right to terminate this Agreement. In the case of such a termination either party shall bear its own costs, further claims for compensation in connection with the termination shall be excluded. "Force Majeure" shall mean events which are beyond the control of the Parties to this Agreement, and which are unforeseen, unavoidable or insurmountable, and which prevent total or partial performance by either of the Parties. Such events shall include earthquakes, typhoons, flood, war, riots or any other instances which cannot be foreseen, prevented or controlled, including instances which are accepted as Force Majeure in general international commercial practice.
14. Anti-money Laundering
Partner shall comply, and ensure any third parties (including but not limited to Partner’s subsidiaries, affiliates, officers, directors, employees, agents and contractors that may be involved in performance hereof) to comply with all applicable laws and regulations pertaining to anti-money laundering at all times in connection with and throughout the course of the Agreement. By entering into this Agreement, opening an account and transacting with Yeahmobi, Partner undertakes to provide Yeahmobi with all necessary information and assistance that Yeahmobi may reasonably require to comply with the all applicable laws and regulations pertaining to anti-money laundering. Partner also warrant that all money used to fund Partner’s transactions have not been or will not be derived from or related to any money laundering, terrorism financing or other illegal activities, whether prohibited under Hong Kong law, international law or convention or by agreement. Partner represents and warrants that acceptance of these payment remittances by Yeahmobi will not breach any applicable laws and regulations pertaining to anti-money laundering. In no event shall Yeahmobi be liable for any damages arising out of Partner’s failure to comply with any anti-money laundering laws and regulations, and Partner shall be liable for such responsibility by itself.
Headings used in this Agreement are provided for convenience only and shall not be used to define, limit or describe the scope of this Agreement.
16. Jurisdiction and Venue
This Agreement shall be governed by and construed in accordance with the laws of China, without giving effect to principles of conflicts of law. If any dispute cannot be resolved by negotiation, then any Party may submit the dispute to Shanghai International Economic and Trade Arbitration Commission (SHIAC) for arbitration by arbitrators which shall be conducted in accordance with its arbitration rules in effect at the time of applying for arbitration. The place of arbitration shall be Shanghai in China.
Any notice to be given hereunder shall be in writing and shall be transmitted by facsimile or email or sent by express airmail, and shall be deemed given when transmitted by facsimile, the day of such facsimile to transmitted, or if sent by mail or email when received, to the parties at the addresses specified at the IO of this Agreement.
18.1 The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
18.2 If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
18.3 The Agreement shall not operate so as to create a partnership or joint venture of any kind between the parties. Nothing contained in the Agreement shall be so construed as to constitute either party to be the agent of the other. Neither party shall have any authority to make any commitments on the other party’s behalf.
18.4 During the term of this Agreement, and for a period of one year thereafter, Partner will not participate in any performance based advertising relationship with any advertiser whose advertisements are or were posted on the Microcloud Site, unless a previously existing business relationship between advertiser and Partner can be demonstrated to Microcloud of the reasonable.
18.5 The Partner shall not, without the prior written consent of Microcloud, assign, transfer or sub Agreement all or any of its rights or obligations under the Agreement.